Test Migration New

The Chronicle of Higher Education, June 9, 2014

By Christopher Shea

Should religious believers be exempt from laws the rest of Americans must follow, if those laws conflict with the teachings of their faith? The Supreme Court is expected to render a decision soon in Sebelius v. Hobby Lobby Stores, a case in which that question is very much at issue. The owners of the craft-store chain, who are Christian, claim a religious exemption from the Affordable Care Act, arguing that to be forced to pay for insurance that covers certain kinds of birth control, like Plan B, which they believe can cause abortions, would violate their First Amendment right to freely exercise their faith.

Much of the debate surrounding that case has focused on whether a corporation can claim the rights of an individual citizen, and whether a religious exemption should be granted even if other people (female employees of Hobby Lobby) will be harmed.

There has been less attention paid to the justness of such exemptions in general.

Religious freedom is sometimes called the “first freedom,” because the imperative that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” opens the First Amendment. But a growing number of legal scholars say that granting believers privileges denied to other people with strong ethical views no longer makes sense, if it ever did.

The University of Virginia legal scholar Micah Schwartzman made that argument in a fall 2012 article in the University of Chicago Law Review,”What If Religion Isn’t Special?” that is still generating reactions and ripostes. The founders created a “morally defective” amendment, Schwartzman wrote, by singling out for protection religious expression, as opposed to general freedom of conscience.

Schwartzman and other scholars ask: Where is the bright line between someone who holds a strong opinion for theological reasons and someone who maintains the same beliefs for secular reasons?

“Basically, if you’re going to grant exemptions, then you should grant them both to religious believers and nonbelievers who have comparable ethical or philosophical views,” Schwartzman says in an interview. “It’s not to say that you should grant them in any particular case—it’s that you should grant them equally.”

The founders were foresighted enough to make sure the bloody sectarian battles of Europe were not imported to our shores, he contends, but their view of religious freedom is simply too narrow for our more theologically and philosophically diverse world.

A host of prominent scholars have made similar argument in recent years, including Harvard Law School’s Noah Feldman; Christopher L. Eisgruber, now president of Princeton University, writing with Lawrence G. Sager, a former dean of the University of Texas Law School; and Brian Leiter, a philosopher and law professor at the University of Chicago Law School.

Adherents of Schwartzman’s line of thought present their views in both more and less aggressive variants. On the decidedly aggressive side is Leiter, author of Why Tolerate Religion? (Princeton University Press, 2013). “The arguments for the special treatment of religious conscience are either pitifully bad or explicitly religious in nature,” he says in an interview. In his book, he even flirts with the idea that religious views may be less worthy of protection than secular conscience, because (as he defines it) religious belief is immune to logic and evidence.

“The idea of special treatment for religious conscience is just receiving a real beating,” says Kathleen A. Brady, a senior fellow at Emory University’s Center for the Study of Law and Religion and author of the forthcoming. The Distinctiveness of Religion in American Law (Cambridge University Press).

Is this academic speculation in the worst sense, detached from both settled law and common sense? Some scholars believe so. “Ordinary citizens” might imagine that professors who argue that religion deserves no special protection are indulging in mere radical provocation, writes Steven D. Smith, a law professor at the University of San Diego, in his new book,The Rise and Decline of American Religious Freedom (Harvard University Press, 2014). Not so, he writes with dismay: The view has become so common among legal scholars that it has become “ho hum.” He makes the observation in a section of his book called “The Last Chapter?,” an allusion to the possible demise of religious liberty as traditionally understood.

This is not necessarily a case in which our intuitions are of much help. The same people who think the Roman Catholic Church, not government bureaucrats, should decide whether and when the church should accept women as priests (private companies can hardly decide that their leaders will all be men) might at the same time believe that a secular pacifist from Berkeley should get the same hearing for his views that a pacifist Quaker does.

For some scholars, the founders’ choice to specify “religion” and “the free exercise thereof” in the First Amendment pretty much settles the question. “People have thrown this idea out there from time to time for the last 40 or 50 years,” says Michael W. McConnell, a former appellate judge who is director of the Stanford Constitutional Law Center, referring to the equating of secular and religious views. “But it makes no headway in the courts, for the good reason that the First Amendment uses the word ‘religion.’ The founders … considered alternative drafts that would have protected the right of conscience, and they settled on protecting the free exercise of religion.”

But there is room for debate about how the constitution might be interpreted today. Yes, a judge who felt bound by the original intention of the founders would have to privilege religious views over secular moral objections to the law, says UVa’s Schwartzman. Yet a judge with a more flexible interpretive strategy might conclude it legitimate to read “religion” in a broader way, to include deeply held secular views.

Complicating things further is that the Supreme Court’s religious-freedom jurisprudence has been “notoriously erratic,” as Smith puts it. Other scholars have compared it to an Alice in Wonderland-style journey into surrealism.

The court has, at least twice, flirted with granting secular ethical reservations equal standing with religious views, in cases involving conscientious objectors to the Vietnam War. In United States v. Seeger(1965) and Welsh v. United States (1970), the court said that people whose secular-ethical objections to war played a fundamental role in their lives were entitled to exemptions from military service. (Welsh was adamant that religion had zero to do with his pacifism.) Secular beliefs could run deeper than “merely personal” moral opinions, the court said. (A technical point: In the Vietnam cases, the court was interpreting a law passed by Congress that exempted people who by reason of their “religious training and belief” were opposed to war. It wasn’t overtly interpreting the Constitution, although the cases had clear constitutional overtones.)

Yet the court made a seemingly contradictory argument in a near-contemporaneous case, Wisconsin v. Yoder (1972), in which Amish people in Wisconsin challenged the state’s requirement that children be taught in formal schools until age 16. The Amish said their faith and community life required them to pull their children from school after eighth grade to begin training as tradesmen. The court sided with the Amish and, what’s more, went out of its way to say that if a group of secular parents had rejected modern ways for reasons similar to Thoreau’s when he retreated to Walden Pond, they would have lost: “Thoreau’s choice was philosophical and personal rather than religious, and such belief does not rise to the demands of the Religion Clauses,” wrote Chief Justice Warren E. Burger.

The longer arc of religious-expression cases in the Supreme Court reflects similar vacillation. An 1879 decision denied Mormons in Utah any exemption from laws banning polygamy: While Congress “cannot interfere with mere religious beliefs and opinions, they may with practices.” On the other hand, an important 1963 case, Sherbert v. Verner, is often described as inaugurating the modern era of religious exemptions. The plaintiff, a Seventh-day Adventist, was fired because she refused to work on Saturday, her Sabbath, and she had trouble finding another job. She was denied unemployment benefits because state administrators described her decision as a personal choice. The court decreed that no “compelling state interest” justified such a “substantial infringement” of her right to express her religious beliefs. That’s the standard that Hobby Lobby’s allies want to see enforced today.

In 1990, in a case that caused an uproar (Employment Division v. Smith), the court seemed to reverse itself, without saying so, when it upheld the denial of benefits to two American Indian employees of a drug-rehab organization, in Oregon, who had been fired for ingesting peyote, which they had done as part of a religious rite. Writing for the majority, Justice Antonin Scalia said neutrally applied laws that did not discriminate against a religious group were presumptively OK; there was no automatic right to a religious exemption. That decision prompted Congress to pass, nearly unanimously, the Religious Freedom Restoration Act of 1993, whose purpose was to “restore” the Sherbert standard: Religious exemptions would be granted unless a compelling state interest existed. The court struck down that act as it applied to the states but appeared to accept its application to the federal government. Today, RFRA, as it’s known, is expected to carry much weight in the Hobby Lobby case.

Another recent case suggests that today’s court might be willing to give religious groups a lot of breathing room. In Hosanna-Tabor Evangelical Lutheran Church v. EEOC (2012), the court upheld the right of a church to fire a teacher who had filed a claim under the Americans With Disabilities Act. For legal purposes, the church classified her as a “minister” of the church—someone with some religious duties, although far from a minister in the colloquial sense. As a result, the justices agreed, the church had more leeway to fire her in the face of antidiscrimination laws than a secular employer would.

Scholars who find it unjustifiable to make such distinctions disagree about whether both religious and nonreligious commitments should get exemptions, or neither should, or something in between. Brian Leiter takes a hard line: No exemptions for anyone, unless the exemption has no effect on anyone else. After all, laws are passed for the public good, and exemptions can harm the public welfare. Exhibit A is religious exemptions to vaccination laws, which open the door to deadly epidemics.

Leiter even says he is “pretty tempted” by the view that gender-discrimination laws should be applied to the Catholic Church, meaning that it would have to accept female priests. In the end, he says, he would make a pragmatic, or “Hobbesian” exception in that case, concluding that enforcing the law would cause more trouble than it’s worth. The UVa law professor Douglas Laycock, meanwhile, says scholars like Leiter who equate religious and secular ethical views, then propose stripping exemptions from both, amount to “constitutional repealers.”

Christopher Eisgruber and Lawrence Sager influentially argued in Religious Freedom and the Constitution (Harvard, 2007) that the Supreme Court has really committed itself to an expansive doctrine of religious exemptions for only a 27-year spell, from Sherbert to Smith, and it only talked tough. During that period, Sager notes in an interview, only four religiously motivated parties (including Sherbert) won exemptions in Supreme Court cases: the Amish in Wisconsin and three litigants seeking unemployment benefits. “In every other instance, when what should have been an enormously robust rule could have been invoked, the court found away to avoid doing so,” he says.

In the controversial peyote case, which the Indians lost, the court was simply reverting to a more workable theory of exemptions that better reflected American constitutional history, Sager argues. For that reason, the Religious Freedom Restoration Act was “tremendously misguided,” he says, because it “restored” an unworkably broad rule that had never been enforced. Yet that’s the standard that allies of Hobby Lobby want to see enforced.

Eisgruber and Sager argue that the free-exercise clause is best thought of as a defense against persecution, protecting religious groups when they aren’t granted freedoms that have been granted to others—and not as a “get out of jail free” card with respect to societal rules. So Sherbert would get her unemployment insurance, but mainly because Christians had already been exempted, by statute, from working on Sundays in the rare cases when factories were open in her state. If one religious group got that privilege, then all should.

Aside from protecting against discrimination, “we have no constitutional reason to treat religion as deserving special benefits or as subject to special disabilities,” Eisgruber and Sager write.

But McConnell, of Stanford, argues that religion does face a strong disability: Under the First Amendment, its “establishment” is explicitly forbidden. So while an ardent Kantian or utilitarian or environmentalist could teach a course in a public high school advocating his views, a Christian could not. That crucial asymmetry undermines the notion that secular and religious views are interchangeable.

Other scholars have pushed back in other ways against the view that secular ethical concerns are no different from religious concerns. Andrew Koppelman, a professor of law at Northwestern University and author of Defending American Religious Neutrality (Harvard, 2013), argues that liberal professors tend to reduce religion to a set of ethical beliefs, when in fact it includes a whole range of rituals, shared history, and ideas about community, as well as notions of duty. It is difficult to pin down what exactly constitutes religion, but that doesn’t mean it doesn’t exist as something uniquely worthy of protection. “The function of the law,” he says, “is not to be theoretically tidy.”

Koppelman would grant exemptions to secular pacifists, but otherwise he mostly wants to preserve special protections for religion. His general take is: Why fix what isn’t broken? “The question is whether we should do anything different in a country that is the most religiously diverse country in the world, and has managed its religious diversity better than others, including Germany and France. … If someone can really point to some serious injustices, then I am open to changing the law.”

The kinds of injustices that distress law professors—a Catholic woman wants to set up a soup kitchen in her home and is allowed to circumvent zoning laws; a secular do-gooder with the same goal is told no—seem to happen mainly in law-review articles, he says.

Naturally, a question on everyone’s mind is how the Hobby Lobby case will change the legal landscape. A number of states already have their own Religious Freedom Restoration Acts—mini-RFRA’s, they are called. Sager fears that if Hobby Lobby wins, more states will pass such statutes, and more and more believers will assert their right to challenge laws.

UVa’s Laycock is more worried about the erosion of religious liberty. He has advised religious groups to drop their fight against gay marriage, but he also favors generous religious exemptions for caterers and photographers who would rather not work at gay weddings. He sees room for compromise that would preserve the rights of both sides in the fight, but neither side wants to budge, he laments. “The conflict over sexual morality is turning much of the country against religious freedom,” he says. And law professors, he thinks, may have helped to lay the intellectual groundwork for its curtailment.